FILED
Aug 17 2017, 5:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael K. Ausbrook Curtis T. Hill, Jr.
Bloomington, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Troy Shaw, August 17, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1312-CR-505
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
The Honorable John F. Surbeck,
Jr., Judge
Trial Court Cause No.
02D04-0006-CF-315
Pyle, Judge.
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Statement of the Case
[1] This case returns to our Court following a ruling on Troy Shaw’s (“Shaw”)
federal habeas petition. Specifically, in 2013, the United States Court of
Appeals for the Seventh Circuit (“the Seventh Circuit”) concluded that Shaw
had been denied the effective assistance of appellate counsel in his direct appeal
because counsel had failed to raise an appellate challenge to an amendment to
Shaw’s charging information. The Seventh Circuit further concluded that Shaw
was entitled to a new direct appeal for his 2001 murder conviction.1 Shaw v.
Wilson, 721 F.3d 908, 912 (7th Cir. 2013), reh’g denied, reh’g en banc denied, cert.
denied. In this new appeal, the sole issue for our review is whether the trial
court properly allowed the State to amend the charging information seventeen
months after the omnibus date. 2 Finding no error, we affirm the trial court’s
judgment.
[2] We affirm.
Issue
Whether the trial court properly allowed the State to amend the
charging information seventeen months after the omnibus date.
1
IND. CODE § 35-42-1-1.
2
Shaw raises several other issues, which we will address as preliminary matters before addressing this issue.
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Facts
[3] The facts supporting Shaw’s conviction were set forth as follows in his first
direct appeal:
Shaw worked for the New River Subscription Service selling
magazine subscriptions. Eric Werczynski [“Werczynski”] was
the boss of Shaw’s group. On June 5, 2000, Shaw and some of
his co-workers arrived in Fort Wayne. Part of the group had
arrived earlier in the day and had rented rooms at the Value
Lodge on Coliseum Boulevard. Shaw and his co-workers
arrived, retrieved their luggage from their vehicle, and went to
obtain room assignments from Werczynski. A man, later
identified as Brett King [“King”], was discovered in one of the
rooms rented by Werczynski. Werczynski confronted King
about his presence in the room and an altercation began. King
fled the room, but the fight continued out on the walkway. King
eventually escaped and ran down the stairs into the parking lot.
Werczynski yelled for someone to “get the motherfucker.” Tr. at
165. Steve Johnson [“Johnson”] and Chris Starling, both New
River employees, chased King across the parking lot into a ditch
where Starling tackled King. Werczynski arrived and the fight
with King began again. Several other New River employees
joined in the fight against King, including Shaw, Johnson and
Ben Brooks [“Brooks”]. . . . King’s dead body was discovered
later in the day on June 5, 2000, lying face down in the same
ditch where the fight took place.
Shaw v. State, No. 02A03-0205-CR-132 (Ind. Ct. App. May 7, 2003).
[4] On June 9, 2000, the State charged Shaw with Class B felony aggravated
battery. The trial court set the omnibus date for July 31, 2000. On November
30, 2001, apparently after further investigating the case and learning more about
Shaw’s active role in King’s beating and contribution to King’s death, the State
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filed a motion to amend the charging information to charge Shaw with murder
rather than aggravated battery. Both the aggravated battery and murder charges
were based on Shaw striking and kicking King, which led to King’s death.
Shaw had notice of the amendment, and his trial counsel objected to it on the
basis of INDIANA CODE § 35-34-1-5 (1982), which, at that time, provided that
an amendment of substance could be made up to thirty days before the omnibus
date and that an amendment of form could be made even later if not
prejudicial. The trial court granted the State’s motion to amend the charging
information after a hearing. The trial court also granted Shaw’s motion for a
continuance, and Shaw was given an additional two months to prepare for trial.
[5] At the February 2002 jury trial, Johnson and Brooks testified that Shaw had
repeatedly and viciously kicked King in the head and face. Specifically,
Johnson testified that as King was on his hands and knees attempting to get up
off the ground, Johnson saw Shaw “football kick [King] in the face, in the nose
and eye area.” (Tr. 252). King went limp, and Johnson observed Shaw kick
and stomp King’s face, head, and neck at least ten to twelve times. Brooks
testified that Shaw kicked King “like a field goal.” (Tr. 288). Brooks further
explained that he watched Shaw kick King in the head five or six times before
Brooks left the scene.
[6] Dr. Joseph Czaja (“Dr. Czaja”), who conducted King’s autopsy, testified that
King “died of blunt force injury to the head due to multiple blows.” (Tr. 340).
Dr. Czaja explained that King’s face had “multiple bruises . . . . both eyes were
essentially swollen shut. Palpitating the face you could feel multiple fractures
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of the underlying facial bones.” (Tr. 340). Dr. Czaja further explained that
King’s:
head was beaten so severely and the brain was shaken up so
much that it swelled up, or as we call it, became edemedis with
fluid to the point where that volume of the brain was greater than
the skull could bear. . . . So the swelling of the brain pressing on
the brain stem led to his death.
(Tr. 342).
[7] Fort Wayne Police Department Detective Stacey Jenkins (“Detective Jenkins”)
testified that during two interviews with Shaw, Shaw had given him several
different accounts of what had happened on the day of King’s beating and
death. In a June 5, 2000 interview, Shaw was initially evasive and said that he
had not taken part in the beating because he had been asleep. Later in the
interview, Shaw admitted that he had chased King down the motel’s exterior
stairway, but he denied participating in the beating. During that same
interview, Shaw told Detective Jenkins that he had hit King with a closed fist
while others in the group were kicking him. During a second interview in
January 2001, in the presence of his trial counsel, Shaw stated that he had
swung a beer bottle at King as King had run down the motel’s exterior stairway.
Shaw further explained that after swinging the beer bottle, he had run back
upstairs and locked himself in his motel room.
[8] At trial, Shaw testified that he saw Werczynski chasing King and yelling at the
magazine sellers to “get [King], kick his ass, kick his motherfucking ass, kill
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him, hold him and wait until I get there.” (Tr. 392). Shaw explained that he
had asked some of the other magazine sellers what was “going on” and was
told to “get the f’ out of [there].” (Tr. 394). According to Shaw, he went to his
motel room and “just fell on the bed” and went to sleep. (Tr. 394). He denied
hitting or kicking King. He also denied telling Detective Jenkins that he had
been at the ditch during the beating. Shaw further denied telling the detective
that he had hit Shaw.
[9] During deliberations, the jury apparently had a question. The court reporter’s
note explains as follows:
[J]ury has a question for the Court. Attorneys are called and on
their way. Defendant on his way up. Court sends a note to the
jurors that he cannot answer any further questions. (nothing on
the record).
(Tr. After Closing Statements 16). Six hours later, the jury returned with a
verdict convicting Shaw of murder. After defense counsel polled the jurors and
the trial court thanked them for their patience and efforts, the trial court stated
as follows:
I would also apologize to you, I’m sure it was frustrating that we
were unable to answer your questions. I’m sure as a matter of
hindsight you can understand that if we were to answer those
questions, had we answered those questions directly as you asked
it would be essentially tampering with your deliberations which
you are exclusively charged with, and so our getting involved in
it would be inappropriate, but at the same time I’m sure it was
very frustrating to you that we were not able to answer those
questions for you. I appreciate your efforts as you worked
through those problems and arrived at a unanimous verdict.
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(Tr. After Closing Statements 20). The trial court sentenced Shaw to sixty (60)
years.
[10] On direct appeal, a public defender filed a “short brief [challenging only the
sufficiency of the evidence to support Shaw’s murder conviction] in which he
observed that ‘there [was] conflicting testimony as to whether the Defendant,
Troy Shaw, was in the ditch where Brett King was murdered.’” Shaw, 721 F.3d
at 912. This Court concluded that we could not reweigh the evidence and
affirmed Shaw’s conviction. Shaw, No. 02A03-0205-CR-132.
[11] Shaw subsequently filed a petition for post-conviction relief wherein he argued
that his appellate counsel rendered ineffective assistance of counsel because
appellate counsel had abandoned trial counsel’s challenge to the validity of the
amended charging information. Shaw specifically argued that omitting the
claim under INDIANA CODE § 35-34-1-5 constituted deficient performance
because the claim was significantly stronger than the sufficiency challenge that
appellate counsel had actually made. With respect to prejudice, Shaw
contended that the abandoned claim likely would have succeeded if made, and
that his conviction would have been vacated. After the post-conviction court
denied Shaw’s petition, Shaw appealed. This Court concluded that, pursuant to
Strickland v. Washington, 466 U.S. 668 (1984), appellate counsel’s performance
had not been deficient. Shaw v. State, 898 N.E.2d 465, 470 (Ind. Ct. App.
2008), trans. denied. Specifically, this Court pointed out that at the time of
Shaw’s appeal, there had been no case law in which a court had invalidated
such an amendment to a charging information. Id. We further noted that
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“appellate counsel would not have been able to demonstrate prejudice because
Shaw had been granted a continuance to prepare for trial on the amended
charges.” Id. We therefore affirmed the denial of Shaw’s post-conviction
petition. Id.
[12] After the Indiana Supreme Court denied transfer, Shaw filed a federal habeas
petition challenging this Court’s application of federal law with respect to his
ineffective assistance of appellate counsel claim. The United States District
Court for the Southern District of Indiana (“the District Court”) denied Shaw’s
petition in 2012. Shaw v. Mize, No. 2:09-cv-325-JMS-WGH, 2012 WL 527454,
at *2 (S.D. Ind. Feb. 16, 2012). However, the Seventh Circuit subsequently
concluded that Shaw’s appellate counsel had been deficient and that Shaw had
suffered prejudice as a result of the deficiency. Shaw, 721 F.3d at 919.
Specifically, the Seventh Circuit explained that appellate counsel’s performance
was deficient because:
[A] competent lawyer in Indiana should have recognized that
there was a state statute under which relief for his client was
possible and would have pursued that theory on appeal. An
argument about the validity of the [S]tate’s effort to amend the
indictment would have been materially stronger than the
frivolous sufficiency-of-the-evidence point that [appellate
counsel] raised. . . . [T]he sufficiency argument that [appellate
counsel] made on Shaw’s behalf was so weak that pursuing it
was the equivalent of filing no brief at all. . . . [Appellate
counsel] should have learned of the potential claim while
reviewing the trial record because trial counsel carefully
preserved it by objecting (and, as Indiana case law requires,
requesting a continuance. . . .) With that much accepted, there is
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no further role for the federal judiciary: whether the Indiana
appellate court would have been persuaded, or if not, whether the
Indiana Supreme Court would have granted transfer, is
immaterial.
Id. at 914, 915, 916.
[13] On the question of prejudice, the Seventh Circuit explained that:
Strickland requires us to ask whether there is ‘a reasonable
probability that, but for [appellate counsel’s] unprofessional
errors, the result of [Shaw’s direct appeal] would have been
different.’ See 466 U.S. at 694, 104 S.Ct. 2052. In assessing
prejudice, we must bear in mind once again that we are making a
comparative inquiry about counsel’s choices; we are not
resolving any issue of state law, and we are not telling the
Indiana judiciary how it should approach this issue. Prejudice
exists, however, if counsel bypassed a nonfrivolous argument,
that, if successful, would have resulted in the vacation of Shaw’s
conviction . . . .
Id. at 918.
[14] When analyzing prejudice and whether there was a reasonable probability that
but for appellate counsel’s error, the result of Shaw’s direct appeal would have
been different, the Seventh Circuit acknowledged that at the time of Shaw’s
appeal, no Indiana appellate court had ever invalidated an amendment under
the statute. Nevertheless, the Seventh Circuit held that Shaw was prejudiced by
appellate counsel’s deficiency. Id. at 919. To reach this determination of
prejudice, the Seventh Circuit relied on Haak v. State, 695 N.E.2d 944 (Ind.
1998) and Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007).
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[15] First, the Seventh Circuit interpreted Haak, which was decided before Shaw’s
first direct appeal, to “h[o]ld unequivocally that if an amendment ‘was of
substance, or prejudicial to the defendant even if of form, it was impermissible
under the statute’ from 30 days before the omnibus date.” Shaw, 721 F.2d at
911 (quoting Haak, 695 N.E.2d at 951). Second, the Seventh Circuit noted that
four years after Shaw had lost his direct appeal, the Indiana Supreme Court
revisited the issue of untimely amendments of substance in Fajardo, 859 N.E.2d
at 1201. There, the trial court had allowed the State to add a second count of
child molestation to the information after it concluded that the amendment
would not prejudice Fajardo.3 However, the Indiana Supreme Court explained
that “because the challenged amendment in this case sought to modify the
original felony information in matters of substance, it was permissible only up
to thirty days before the omnibus date,” regardless of prejudice. Id. As a result,
the Indiana Supreme Court vacated Fajardo’s second conviction.4 Id.
3
This second count was based on different acts committed on a different day.
4
In Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), trans. denied, we noted that:
The [Indiana] legislature immediately responded to Fajardo by amending the statute,
effective May 8, 2007, to reflect the pre-Fajardo law (i.e., amendments of substance
permitted any time before trial so long as the defendant’s rights are not prejudiced).
Thus, Fajardo was superseded by statute in less than four months. This prompt return to
pre-Fajardo law indicated the urgency in the legislature’s desire to negate the effects of
Fajardo.
Although the legislature did not expressly provide for the retroactive application of the amended statute, this
Court concluded that we were “confident this was the clear intent of such legislation.” Id.
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[16] Hypothesizing that Fajardo “offer[ed] some insight into what the state supreme
court would have done in the period before the amendment,” the Seventh
Circuit concluded that Shaw had demonstrated a “reasonable chance of success
on appeal but for [appellate counsel’s] deficient performance.” Id. at 919.
Concluding that Shaw had received ineffective assistance of appellate counsel,
the Seventh Circuit explained as follows:
Shaw is entitled to a new direct appeal. Should Indiana choose
to grant this relief, instead of releasing Shaw outright, the Indiana
appellate courts will be free to consider all pertinent issues of
state law at that time. Because [appellate counsel’s] performance
was deficient and Shaw suffered prejudice as a result, the
decision of the district court is VACATED and the case is
REMANDED with instructions to issue a writ of habeas corpus
unless the State of Indiana grants Shaw a new appeal within 120
days after issuance of the mandate.
Id. at 919-20.
[17] On December 19, 2013, after the Seventh Circuit had denied the State’s
petitions for rehearing and rehearing en banc, the State filed under Shaw’s post-
conviction appeal cause number an emergency notice of pending proceedings
before the United States Supreme Court following federal habeas corpus
proceedings. In that notice, the State asked this Court to grant Shaw a new
direct appeal by January 3, 2014, which was 120 days from the date that the
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Seventh Circuit had issued its appellate mandate. The State also asked this
Court to hold the new appeal in abeyance so that it could pursue a writ of
certiorari from the United States Supreme Court.
[18] On December 30, 2013, the Clerk of the Supreme Court, Court of Appeals, and
Tax Court (“the Clerk”) received Shaw’s motion for alternative relief, which
Shaw claims was a response to the State’s notice. According to Shaw, his
motion “raised questions of jurisdiction, res judicata, and judicial estoppel . . .
[and] . . . opposed holding [Shaw’s] appeal in abeyance.” (Shaw’s Br. 16). Our
docket entry reveals that the motion exceeded the page limit and did not
contain a word count certificate. Because of the defects, Shaw’s motion was
not officially filed.
[19] The following day, December 31, 2013, this Court ordered the Clerk to open a
direct appeal under a new appellate cause number and to hold that appeal in
abeyance pending further order. We also ordered the State to file a status report
regarding the certiorari proceedings and to give this Court notice of any ruling
on the certiorari petition within three days receipt of any such ruling.
[20] On January 3, 2014, the Clerk sent a notice of defect to Shaw regarding his
motion for alternative relief. On January 13, 2014, Shaw filed a motion for
relief from the appellate rules wherein he “requested that he be relieved from
having to refile his motion with a word count because that would have served
no useful purpose; he also provided a word count for the motion that was well
under the 4,200 words provided by Indiana Appellate Rule 43(G)(2).” (Shaw’s
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Br. 17). The appellate docket also reveals that on February 12, 2014, the Clerk
issued a “notice of return” with respect to Shaw’s motion for alternative relief.
Specifically, the docket provides that “[p]er standing instruction of the Court of
Appeals, one (1) received-stamped copy of the Verified Motion for Alternative
Relief has been retained in case file, all other copies returned.”
[21] On June 17, 2014, after the United States Supreme Court had denied certiorari,
the State filed a notice of termination of proceedings. Shortly thereafter, this
Court remanded the case to the trial court with instructions to hold a hearing
with Shaw present to advise him of his right to a new direct appeal and
appointment of appellate counsel. In August 2014, this Court accepted the trial
court’s order appointing counsel for Shaw’s new direct appeal. In February
2015, Shaw asked the trial court for funds to investigate the juror’s questions
during deliberations. After the trial court concluded that it did not have
jurisdiction to grant the request, in March 2015, Shaw asked this Court for
funds for an investigator. This Court denied the request. Shaw and the State
have now filed their appellate briefs in this second appeal of Shaw’s 2001
murder conviction. We now proceed to the merits of Shaw’s claim.
Decision
[22] At the outset, we dispose of several preliminary matters. First, Shaw argues
that this appeal should be dismissed because: (1) this Court “had no power to
order a new appeal out of thin air,” (Appellee’s Br. 18); (2) res judicata bars a
new trial where this Court decided that Shaw was not entitled to a new appeal
in Shaw’s State post-conviction litigation; (3) the State was judicially estopped
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from requesting the relief it opposed in Shaw’s State post-conviction litigation;
and (4) the “correct relief for an ineffective assistance of counsel claim is a new
trial, not a new appeal,” (Appellee’s Br. 21).
[23] All of these arguments stem from the Seventh Circuit’s opinion that granted
Shaw relief on his federal habeas petition. Specifically, it was the Seventh
Circuit that offered the State the choice of either granting Shaw a new direct
appeal or releasing him. If Shaw believed the Seventh Circuit’s order was in
error, Shaw should have sought relief in the federal courts. Shaw’s attempts to
undermine the Seventh Circuit’s order in state court amount to an
impermissible collateral attack. See Ind. Dep’t of Envtl. Mgmt. v. Conard, 614
N.E.2d 916, 922 (Ind. 1993) (“A collateral attack on a judgment is an attack
made in a proceeding that has independent purpose other than to impeach or
overturn the judgment, although impeaching or overturning the judgment may
be necessary for the success of the motion.”); Dawson v. Estate of Ott, 796 N.E.2d
1190, 1196 (Ind. Ct. App. 2003) (noting that an action in a state court that
attempts to undermine a federal court decision is an impermissible collateral
attack).
[24] Shaw also challenges two rulings made by this Court. Specifically, Shaw first
argues that he was “effectively denied his federal right to a free transcript to
pursue this appeal” when this Court denied his request for funds to hire an
investigator to help him “reconstruct the record with respect to jury questions
during deliberations.” (Shaw’s Br. 20, 21). Shaw’s request for funds effectively
amounted to a desired attempt to impeach the jury’s verdict. However, it has
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long been established in Indiana that a jury’s verdict may not be later
impeached by the testimony or affidavit of the jurors who returned it.5 Pattison
v. State, 958 N.E.2d 11, 21 (Ind. Ct. App. 2011), trans. denied. The Indiana
Supreme Court has explained the policy concerns behind this rule as follows:
If this Court were to permit individual jurors to make affidavits
or give testimony disclosing the manner of deliberation in the
jury room and their version of the reasons for rendering a
particular verdict, there would be no reasonable end to litigation.
Jurors would be harassed by both sides of litigation and find
5
Although this is a generally recognized rule, Indiana Evidence Rule 606(b) provides three exceptions:
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict
or indictment, a juror may not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that juror’s or another juror’s
vote; or of any juror’s mental processs concerning the verdict or indictment. The court
may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) any juror’s drug or alcohol use;
(B) extraneous prejudicial information;
(C) an outside influence was improperly brought to bear on any juror; or
(D) a mistake was made in entering the verdict on the verdict form.
In addition, in Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 869 (2017), the United States Supreme Court held
that:
[W]here a juror makes a clear statement that indicates he or she relied on racial
stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires
that the no-impeachment rule give way in order to permit the trial court to consider the
evidence in the juror’s statement and any resulting denial of the jury trial guarantee.
Because Shaw raises none of these exceptions, we need not address them.
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themselves in a contest of affidavits and counter-affidavits and
arguments and rearguments as to why and how a certain verdict
was reached. Such an unsettled state of affairs would be a
disservice to the parties, litigant and an unconscionable burden
upon citizens who serve on juries.
Stinson v. State, 262 Ind. 189, 198, 313 N.E.2d 699, 704 (1974).
[25] Here, at Shaw’s trial, when the jurors had a question during deliberations, the
trial court sent them a note and told them that it could not answer any
questions. After the jury had delivered its verdict, the trial court stated that the
jury probably now understood that had the trial court answered its questions,
the court would have “essentially [been] tampering with the [jury’s]
deliberations.” (Tr. After Closing Statements 20). Shaw requested state funds
to investigate what had occurred during deliberations, which would have been
improper. Accordingly, this Court did not improperly deny Shaw’s request for
funds.
[26] Shaw also argues that this Court improperly failed to rule on his motions for
alternative relief and for relief from the appellate rules. Specifically, Shaw
contends that because “[n]either motion has apparently . . . been considered by
this Court, [Shaw was not only] not given an opportunity to be heard at a
meaningful time in a meaningful manner, he was given no opportunity to be
heard at all.” (Shaw’s Br. 30). However, neither of Shaw’s motions was ever
officially filed. The motion for alternative relief was defective because it
exceeded the page limit and did not contain a word count certificate. The Clerk
sent a notice of defect to Shaw regarding this motion; however Shaw’s
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subsequent motion for relief from the appellate rules did not correct the defect
and was returned to Shaw. Because neither of these motions was officially
filed, this Court had nothing to rule on, and we find no error.
[27] We now turn to the merits of Shaw’s direct appeal as ordered by the Seventh
Circuit. Shaw contends that the trial court erred when it allowed the State to
amend the charging information seventeen months after the omnibus date. Our
starting point is INDIANA CODE § 35-34-1-5, which, the version in effect at the
time of Shaw’s offense, provided:
(b) The indictment or information may be amended in matters of
substance or form, and the names of material witnesses may be
added, by the prosecuting attorney, upon giving written notice to
the defendant, at any time up to:
(1) thirty (30) days if the defendant is charged with a
felony; or
(2) fifteen (15) days if the defendant is charged only with
one (1) or more misdemeanors; before the omnibus date.
When the information or indictment is amended, it shall
be signed by the prosecuting attorney.
(c) Upon motion of the prosecuting attorney, the court may, at
any time before, during, or after the trial, permit an amendment
to the indictment or information in respect to any defect,
imperfection, or omission in form which does not prejudice the
substantial rights of the defendant.
(d) Before amendment of any indictment or information other
than amendment as provided in subsection (b) of this section, the
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court shall give all parties adequate notice of the intended
amendment and an opportunity to be heard. Upon permitting
such amendment, the court shall, upon motion by the defendant,
order any continuance of the proceedings which may be
necessary to accord the defendant adequate opportunity to
prepare his defense.
[28] Shaw argues that the “State’s amendment, substituting a murder charge for
aggravated battery, changed both the offense charged and the penalty and was
therefore impermissibly late under INDIANA CODE § 35-34-1-5.” (Shaw’s Br.
33). The gravamen of this argument is that the amendment was substantive
and that it was untimely because it was filed seventeen months after the
omnibus date.
[29] However, even assuming that the amendment to Shaw’s information was
substantive, cases decided at the time of Shaw’s 2003 direct appeal regularly
interpreted INDIANA CODE § 35-34-1-5 to allow substantive amendments so
long as the substantial rights of the defendant were not prejudiced. See
Townsend v. State, 753 N.E.2d 88, 94 (Ind. Ct. App. 2001), 6 abrogated by Fajardo,
6
Townsend recognized that in Haak, 695 N.E.2d at 951, the Indiana Supreme Court had stated that
substantive amendments may not occur after specified times in advance of the omnibus date as provided in
subsection (b). The Seventh Circuit concluded that this statement was an “unequivocal holding.” Shaw, 721
N.E.2d at 911. We disagree with this conclusion for two reasons. First, we find that the Indiana Supreme
Court’s statement was dicta where the amendment was found to be one of form rather than substance. See
Haak, 695 N.E.2d at 951. Second, we agree with Townsend, 753 N.E.2d at 94, that:
[W]ere we to read Haak as prohibiting any substantive changes after the specified times in
subsection (b), the provisions for a continuance would be largely unnecessary. See State v.
Gullion, 546 N.E.2d 121, 123 (Ind. Ct. App. 1989) (“To hold that [I.C. § 35-34-1-5] does
not permit charges to be amended for other than form anytime after 30 days prior to the
omnibus date would make subsection (d) superfluous.”).
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859 N.E.2d at 1206-07, (citing Kindred v. State, 540 N.E.2d 1161, 1170 (Ind.
1989), abrogated by Fajardo, 859 N.E.2d at 1206-07); and Todd v. State, 566
N.E.2d 67, 69 (Ind. Ct. App. 1991), abrogated by Fajardo, 859 N.E.2d at 1206-
07). See also Brown v. State, 728 N.E.2d 876, 879-80 (Ind. 2000), abrogated by
Fajardo, 859 N.E.2d at 1206-07; Wright v. State, 593 N.E.2d 1192, 1197 (Ind.
1992), cert. denied, 506 U.S. 1001 (1992), abrogated by Fajardo, 859 N.E.2d at
1206-07; Haymaker v. State, 528 N.E.2d 83 (Ind. 1988), abrogated by Fajardo, 859
N.E.2d at 1206-07; Hegg v. State, 514 N.E.2d 1061 (Ind. 1987), abrogated by
Fajardo, 859 N.E.2d at 1206-07; Prewitt v. State, 761 N.E.2d 862 (Ind. Ct. App.
2002); Tripp v. State, 729 N.E.2d 1061, 1064 (Ind. Ct. App. 2000), abrogated by
Fajardo, 859 N.E.2d at 1206-07.
[30] Both Prewitt and Tripp are instructive in Shaw’s second direct appeal. In the
Prewitt case, which was decided one year before Shaw’s first direct appeal,
Prewitt asked a police officer working undercover at a public housing complex
if the officer would accept his trade of steaks and cigarettes for cocaine. The
officer followed Prewitt to his van, and when Prewitt’s accomplice showed the
officer the steaks and cigarettes, the officer arrested Prewitt and his accomplice.
Townsend further pointed out that only a few months prior to Haak, the Indiana Supreme Court had stated in
Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated by Fajardo, 859 N.E.2d at 1206-07, that
“[u]ltimately the question [was] whether the defendant had a reasonable opportunity to prepare for and
defend against the charges.”
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Prewitt was charged with Class C felony conspiracy to possess cocaine in
January 2000. The omnibus date was set for March 14, 2000. On November
15, 2000, eight months after the omnibus date, the State filed a motion to
amend the information to add Count II, Class C felony attempted possession of
cocaine. The State explained that the amendment “was based upon the very
same fact circumstances. We’re not alleging new facts. We are simply alleging
an alternative [to] the conspiracy conviction . . . the Jury could also find that it
legally fits the definition of an Attempt crime . . . .” Id. at 867. The trial court
granted the motion after a hearing. At a pre-trial hearing on November 27,
2000, the State orally moved again to amend the information. The substance of
the charges was not changed by this second amendment; however, the charges
were elevated from Class C felonies to Class B felonies due to the proximity to
the family housing unit. The trial court granted the State’s request to amend
the charges, and Prewitt’s trial on the two Class B felonies began six weeks later
after several delays. A jury convicted Prewitt of both charges; however, the
conspiracy verdict was later vacated by the trial court.
[31] On appeal, Prewitt argued that the trial court had erred when it allowed the
State to amend the charging information to add an additional count eight
months after the omnibus date and two weeks prior to a scheduled trial date.
This Court acknowledged the general rule that an information may not be
amended to change the theory of the case or the identity of the charged offense.
Id. at 868. However, we further pointed out that “an amendment that does not
prejudice the defendant’s substantial rights, including the right to notice and an
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opportunity to be heard, is permissible.” Id. We pointed out that Prewitt had
been afforded notice of the proposed amendment and an opportunity to be
heard. Id. In addition, the facts supporting the new charge were the same facts
supporting the original charge, and Prewitt had been afforded nearly two more
months to prepare. Id. at 868-69. We concluded that Prewitt had failed to
demonstrate that his substantial rights were affected and that the trial court did
not err in allowing the State to amend the charging information to include
Count II, attempted possession of cocaine. Id. at 869.
[32] Similarly, in the Tripp case, Tripp was charged with operating a motor vehicle
with a blood alcohol content greater than .10%. After the omnibus date and
twenty-eight days before trial, the State moved to amend the charging
information to add a count of operating a vehicle while intoxicated. Before
trial, Tripp filed a motion to dismiss the amended count, which the trial court
denied. Tripp subsequently filed a motion to dismiss the first count and to
certify for interlocutory appeal the issue of whether the information was
properly amended to include a second count.7 The trial court granted Tripp’s
motion to dismiss Count I of the information, leaving only the amended Count
II. The trial court also certified the issues for interlocutory appeal.
[33] On interlocutory appeal, Tripp argued that the trial court had erred in granting
the State’s motion to amend the information. As in Prewitt, we acknowledged
7
Tripp also sought an interlocutory appeal of the trial court’s denial of his request for a jury trial.
Court of Appeals of Indiana | Opinion 02A03-1312-CR-505 | August 17, 2017 Page 21 of 23
the general rule that an information may not be amended so as to change the
theory of the case or the identity of the offense charges. Id. at 1064. However,
we further noted that “an amendment that does not prejudice substantial rights
of the defendant is permissible. These substantial rights include the right to
notice and an opportunity to be heard and contest the amendment.” Id. The
requirement of an opportunity to be heard is satisfied when the defendant is
given adequate time to object and request a hearing after proper notice. Id. at
1065. We also pointed out that for substantive amendments, the court should
grant a continuance, if requested, to allow the defendant adequate time to
prepare for trial. Id. at 1064.
[34] After analyzing Tripp’s interlocutory claim, we concluded that the request to
amend the information by including an additional charge was an amendment of
substance as the change was essential to making a valid charge. Id. We noted
that such amendments were permissible provided the substantial rights noted
above were not offended. Id. Ultimately the question was whether the
defendant had a reasonable opportunity to prepare for and defend against the
charges. Id. at 1065. We concluded that Tripp’s substantial rights were not
prejudiced by the amendment as he was given notice of the amended
information, he was given an opportunity to challenge it, and the trial court
continued the trial to give Tripp adequate time to prepare his defense to the new
charge. Id. at 1064-65. Having decided the interlocutory issues, we remanded
the case to the trial court to proceed to a jury trial. Id. at 1066.
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[35] Turning now to the facts of this case, the State initially charged Shaw with
Class B felony aggravated battery. The trial court set the omnibus date for July
21, 2000. On November 30, 2001, apparently after learning how Shaw’s role in
King’s beating contributed to his death, the State filed a motion to amend the
charging information to charge Shaw with murder rather than aggravated
battery. Shaw had notice of the amendment, and his trial counsel objected to it.
The trial court granted the State’s motion after a hearing. The trial court also
granted Shaw’s motion for a continuance, and Shaw was given an additional
two months to prepare for trial.
[36] Here, as in Prewitt and Tripp, Shaw was given notice of the amendment, an
opportunity to challenge it, and adequate time to prepare for trial. In addition,
as in Prewiit, the facts supporting the new charge were the same facts supporting
the original charge. Further, Shaw’s defense did not change. Whether he was
charged with aggravated battery or murder, Shaw argued that he was not at the
scene and did not participate in beating King. Shaw has failed to demonstrate
prejudice to his substantial rights resulting from the untimeliness of the
amendment. The trial court did not err when it allowed the State to amend the
charging information.
[37] Affirmed.
Baker, J., and Mathias, J., concur.
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